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Federal Register / Vol. 86, No. 41 / Thursday, March 4, 2021 / Notices
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IDS faces competition from numerous other providers that offer market participants choices for connectivity to the Mahwah Data Center, Exchange Systems, Third Party Systems, Included Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC. Without this proposed rule change, market participants seeking such connectivity would have fewer options. With this proposal, market participants would have more choices with respect to the form and price of the services they use, allowing market participants to select the services and connectivity options that better suit their needs, thereby helping them tailor their connectivity operations to the requirements of their businesses.
The Exchange believes that the proposed NCL Notes 1 and 4 are equitable because they specify that NCL
Customers that voluntarily select to access the IDS Network or NMS
Network would not be subject to charges above and beyond the fee paid for the relevant IDS Network or NMS Network port. Further, Notes 1, 2, 3, and 4
specify that NCL Customers will not be charged for any access or connectivity that they had not selected.
The Proposed Change Is Not Unfairly Discriminatory The Exchange believes its proposal is not unfairly discriminatory. The proposed change does not apply differently to distinct types or sizes of market participants. Rather, it applies to all market participants equally. The purchase of any proposed service is completely voluntarily and the Fee Schedule will be applied uniformly to all market participants.
IDS faces competition from numerous other providers that offer market participants choices for connectivity to the Mahwah Data Center, Exchange Systems, Third Party Systems, Included Data Products, Third Party Data Feeds, third party testing and certification feeds, and DTCC. Without this proposed rule change, market participants seeking such connectivity would have fewer options. With this proposal, market participants would have more choices with respect to the form and price of the services they use, allowing market participants to select the services and connectivity options that better suit their needs, thereby helping them tailor their connectivity operations to the requirements of their businesses.
The Exchange believes that the proposed NCL Notes 1 and 4 are not be unfairly discriminatory because they specify that NCL Customers that voluntarily select to access the IDS
Network or NMS Network are not be
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subject to charges above and beyond the fee paid for the relevant IDS Network or NMS Network port. Further, Notes 1, 2, 3, and 4 specify that NCL Customers will not be charged for any access or connectivity that they had not selected.20
For these reasons, the Exchange believes that the proposal is consistent with the Act.

C. Self-Regulatory Organizations Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others
B. Self-Regulatory Organizations Statement on Burden on Competition
Within 45 days of the date of publication of this notice in the Federal Register, or such longer period up to 90
days i as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or ii as to which the self-regulatory organization consents, the Commission will:
A By order approve or disapprove the proposed rule change, or B institute proceedings to determine whether the proposed rule change should be disapproved.

The proposed change does not affect competition among national securities exchanges or among members of the Exchange, but rather between IDS and its commercial competitors.
As noted above, the Exchange is making the current proposal solely as a result of the Commissions recent interpretation of the definitions of exchange and facility in the Wireless Approval Order, which the Exchange is presently challenging on appeal to the Court of Appeals for the District of Columbia Circuit.21 The Exchange has nevertheless proposed this rule change in order to preserve the ability of IDS to offer the services at issue herein. If IDS were compelled to stop offering such services, consumers would have fewer service providers to choose from for their connectivity needs, which would be a detriment to competition overall.
Notwithstanding the foregoing, the Exchange notes that there are numerous other third parties that provide circuits and connectivity at the Mahwah Data Center, and that IDS competes with those third parties for the provision of such services to customers. None of these third parties have been compelled to file their services or fees with the Commission, and requiring IDS to do so puts IDS at a competitive disadvantage vis-a-vis its competitors. Requiring the Exchange to file IDS services and fees herein is therefore a burden on competition.
The Exchange believes competition would be best served by allowing IDS to freely compete with the other providers of connectivity services, without the additional burden on IDS alone to file any proposed changes to services and fees with the Commission.
20 In addition, the General Note on page 1 of the Fee Schedule would apply to all of the services proposed herein. See supra note 19.
21 Intercontinental Exchange, Inc. v. SEC, No. 20
1470 D.C. Cir. 2020.

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No written comments were solicited or received with respect to the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action
IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
Comments may be submitted by any of the following methods:
Electronic Comments Use the Commissions internet comment form http www.sec.gov/
rules/sro.shtml; or Send an email to rule-comments@
sec.gov. Please include File Number SR
NYSENAT202104 on the subject line.
Paper Comments Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 205491090.
All submissions should refer to File Number SRNYSENAT202104. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commissions internet website http www.sec.gov/
rules/sro.shtml. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the
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